What Do Construction Lawyers Do?

For this week’s Guest Post Friday here at Musings, we welcome back, Gregory L. Shelton. Greg is a shareholder with Horack, Talley, Pharr & Lowndes, P.A., in Charlotte and is licensed to practice law in North Carolina, South Carolina, and Florida. His principal areas of practice are construction law and complex business litigation. He is board certified by the Florida Bar as a specialist in the field of construction law and has been selected as one of North Carolina’s Legal Elite construction lawyers by Business North Carolina. Mr. Shelton authors the Construction Law Carolinas blog, www.ConstructionLawCarolinas.com, and has authored numerous articles on construction law topics. He received his B.S. in Finance from the Florida State University College of Business in 1991 and his J.D. degree with honors from the Florida State University College of Law in 1995.

I use a similar introduction when people ask what I do. “I’m a construction lawyer.” Some people nod knowingly, but there are other people who have no idea what a construction lawyer actually does. “Oh, a . . . conssssstruuuuction lawyer . . . ?” When I hear this, I know the other person is straining to combine the image of a hard-hatted construction worker with that of a periwigged barrister of the Queen’s Counsel.

More explanation is needed, so I explain that I am a lawyer who represents owners, architects, contractors, and subcontractors whenever there is a dispute over quality or someone not getting paid for work on a construction project. Again, an explanation that falls far short of what construction lawyers do, but let’s face it: we live in a 140 characters or less world.

If I had more time, I would explain to these folks that, among other things, construction lawyers draft and negotiate construction contracts, try cases involving construction projects in court, counsel construction companies on employment and labor issues, and defend businesses in administrative actions brought by licensing boards, OSHA, and other governmental agencies. The bulk of a construction lawyer’s time, however, is spent preparing a case for mediation, arbitration, or trial. This work includes reviewing thousands of documents, interviewing witnesses, researching legal issues, working with expert witnesses, taking depositions, preparing and arguing motions in court, and haggling with the opposing attorney.

But what truly makes a construction lawyer a construction lawyer is knowing how construction works. An experienced construction lawyer will know when to ask for trip tickets, how to read geotechnical reports, the difference between cement and concrete, the elements of a building envelope, the responsibilities of a PM and a super, and what the terms “lump sum,” “design-build,” “GMP,” and “CMa” mean.

Beyond the practical knowledge, there is a body of substantive law that construction lawyers must know to properly perform their job. I have been privileged to serve once again as the Managing Editor of the North Carolina Bar Association’s North Carolina Construction Law Deskbook. The Deskbook, published every three years, provides me a great opportunity to revisit the construction law canon. The table of contents of the Deskbook is as good a summary as any of the areas of law construction lawyers must know:

Alternative Dispute Resolution (this includes arbitration, mediation and other methods of resolving disputes outside of court)

Some of these subjects, such as employment law and bankruptcy law, are discrete areas of law practice in their own right. Other subjects, such as lien law and the building code, are subsets of construction law. But it is contract law that occupies the center of the construction law universe. My first-year contracts professor, Bill McHugh, told us: “If you want a lawyer who understands contracts, hire a construction lawyer.” I understand now what he meant. Construction disputes are fought on the complex multi-tiered web of contractual relationships between the owner, the architect, the engineer, the contractor, the subcontractors, and the suppliers. Each of these relationships involves its own claims, defenses, and remedies. A construction lawyer must know contract law like the back of his or her hand.

So, all that being said, what do we do? You’ll find us in court, at a conference table hunched over a set of mechanical plans, on a call advising a client how to handle an OSHA inspection, arguing with opposing counsel about which party wears the black hat, or editing a delay damages clause in a construction contract. In short, we are lawyers who serve the legal needs of the construction industry.

Greg and I welcome your comments below. Also, please subscribe to keep up with this and other Guest Post Friday Musings.